Will it happen this time? The outlook for comprehensive immigration reform

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Marchers in downtown Los Angeles on May 1, 2006, during a peak in public momentum for immigration reform as immigrant rights marches took place nationwide. Comprehensive reform bills failed to make it out of Congress in 2006 and 2007.
Photo by jeromebot/Flickr (Creative Commons)

Now that eight U.S. senators and President Barack Obama have announced their respective immigration reform plans, and a House of Representatives plan is on the way, what are the chances that these proposals will become law?

Two attempts at comprehensive immigration reform failed in Congress in 2006 and 2007, even as then-president George W. Bush backed the idea and public momentum behind reform efforts peaked. The plan the Senate introduced last week - which ties a path to citizenship for the undocumented contingent to border security goals - echoes a similarly structured 2007 plan. President Obama's proposal is similar in many ways to the Senate plan, although it doesn't include the same contingency.

The last comprehensive reform bill that became law was the Immigration Reform and Control Act of 1986. Even so, that bill only reached President Ronald Reagan's desk after a series of negotiations in Congress that essentially left its employer enforcement component without teeth.

Do the immigration reform plans on the table today stand a chance? As the debate begins anew, it helps to review the reform efforts of the past, what's worked and what hasn't. Political scientist Wayne Cornelius of UC San Diego, founder of the university's Center for Comparative Immigration Studies, has been following U.S. immigration policy since well before 1986. Here he shares some of the lessons learned, and what this bodes for immigration reform now.

M-A: What made a comprehensive immigration reform package possible in 1986, something that hasn't been possible during more recent efforts? What did it take, and how well did it work?

Cornelius: Well, 1986 was a piece of cake compared with 2006 and 2007, when comprehensive reform was resurrected. 1986 came about because, in the first place, there was extraordinary leadership in the Congress, particularly in the Senate, with Alan Simpson on the Republican side and Ted Kennedy on the Democratic side, moving enough votes in their respective caucuses to get a comprehensive bill passed. The economy was better than it has been in recent years, and Ronald Reagan also wanted to sign the bill.

So the pieces came together, but in a way that basically predetermined that there would be another immigration crisis down the road. And that happened because the key provision of the 1986 bill was the portion that penalized employers for the knowing hiring of undocumented immigrants.

But Congress wrote the law in such a way that those employers were not required to verify the authenticity of the documents presented by job applicants, which opened the door to massive fraud and a lot of looking the other way, because employers had an affirmative defense under the law against prosecution if they just asked for certain documents, and recorded on a piece of paper that they had seen them and they appeared on their face to be valid.

Now, did people like Ted Kennedy and Alan Simpson know that they were creating a giant loophole? They probably did, but it was the kind of compromise needed to neutralize opposition from the business community and to get a comprehensive bill passed. There was also no provision in the 1986 law on future flows of migration, which meant that even though the stock of undocumented workers who were in the country already at the time could be legalized - most of it - there was no provision for the legal admission of future workers.

There were very small guest worker provisions that didn’t work, and that made it necessary for most new entrants in the 1990s, particularly from countries like Mexico, to continue to enter illegally. So they didn’t look far enough down the road, or if they did, they decided that it would be too politically costly in terms of getting a bill passed to fix those parts of the package.

Fast forward to 2006, 2007, and the undocumented population had once again swelled, as it inevitably would if the number of visas for legal entry had not been adjusted upward.

M-A: So what happened 20 years later? There was a fair amount of support for comprehensive reform in the mid-2000s, with immigrant rights marches nationwide and support from the Bush White House. Why didn't the efforts then work out?

Cornelius: The political conjuncture was much more difficult than in 1986. We didn’t have the kind of congressional leadership then that we did back in 1986, and immigration had become a contentious wedge issue, particularly for Republican politicians, so the compromise that was worked out on the Senate in 2006 and 2007 died as soon as the bill got to the Republican-controlled House of Representatives.

Border enforcement became the most politically palpable way to address the immigration issue. It was the politically low-cost way to go. Most members of the public thought that if you could just shovel more money into fortifying the border, that would vastly reduce the problem of illegal immigration. And there was no effective pushback against that idea, so your border enforcement became the de facto immigration control policy of the United States. It was quite unrealistic in my view, support for the idea that it was just a matter of increasing resources for border enforcement, and everything else would fall into place.

By that point, the difficulty of getting any kind of comprehensive legalization program had also greatly increased, because not only was border enforcement the policy tool du jour, but legalization had become tarred with the brush of amnesty on the right of the spectrum, and particularly in the Republican portion of it.

So that approach to dealing with the large and growing stock of undocumented immigrants had become devalued since 1986. And there was also the idea that the 1986 legalization program had fed subsequent waves of illegal immigration, had encouraged them. There was never any empirical evidence to support that, but it was an idea that had become embedded in the political discourse.

The only chance of getting a comprehensive bill at that point in time was out of the Senate, and President Bush was unable to sway enough members of the Republican Caucus in the House to make it feasible to get a law all the way through.

M-A: So what are the prospects now of a comprehensive reform bill becoming law? How far might it go, and what snags might there be?

Cornelius: It is possible that a comprehensive bill will emerge from Congress this year. If it does, it will owe its existence to the election outcome last year, in which one out of 10 votes were cast by Latinos, and they voted overwhelmingly for the president and other Democratic candidates.

That was a very sharp wake-up call to the Republican party, that they could no longer simply obstruct any effort to deal with the status quo on immigration. The message from the electorate was that it was too politically costly for them to simply endorse the status quo and call for more troops on the border.

So a new approach was clearly called for after last year's election. But I'm skeptical that many of those same Republicans who are now calling for comprehensive reform are truly willing to bite the bullet and do comprehensive reform in a way that would actually improve the existing immigration system.

The real risk this year is that they will pass a bill that is symbolic, rather than affecting the situation on the ground in a positive way. And I am referring particularly to the notion that the legalization component has to be made contingent upon additional improvements in the effectiveness of border enforcement, and also the creation of a system for documenting the exits of everyone who comes in to the U.S. on a temporary visa.

We don’t have a comprehensive system for documenting exits from the United States, even though Congress mandated the immigration agency years ago to create such a system. Why hasn’t it been created? Is it just a matter of resource constraints, is it a matter of bureaucratic impediments, politics? But the fact is that it has not been created, and it is not at all clear from the blueprint announced by the senators how a new or vastly expanded exit control system is going to be put into place, and how it's going to be evaluated, and how long all of that will take.

If that is one of the effective triggers for the legalization components and other parts of the reform bill, that's an obvious problem. Even more so, the notion that we have to declare victory at the border before any of the rest of the bill can go forward. The fact is that we have already wrung as much deterrent effect from the current border enforcement apparatus as we realistically can. It is a political fantasy to believe that another infusion of high technology in the form of drones and adding even more Border Patrol agents to the 20,000 already on duty will discourage appreciably more potential migrants from trying than the existing system does.

But that notion that you have to link implementation of the rest of the bill to these two triggers is already, I’m afraid, deeply embedded in the discourse in Washington. President Obama pushed back against that, insisting that we need to put those 11 million undocumented people on a path to permanent legal status and citizenship from the outset of the process. So you do both the enforcement enhancements and the legalization components simultaneously, rather than sequentially.

That is particularly important because under the blueprint announced by the senators, undocumented immigrants in the country today could get probationary status. They would not be deportable when they had that status, but we don’t know for how long they could have it. The reality is that probationary status could become permanent if the triggers never materialize.

So you would have literally millions of people in legal limbo, with no ultimate remedy in sight. That is why it's really pernicious to have the legalization components and other positive changes in the immigration system being held hostage to the kinds of triggers that the senatorial group has advocated.

M-A: But then, like it was in 1986, might compromises such as these be necessary to get a comprehensive bill through?

Cornelius: That is entirely possible. Insisting on these triggers may be the price of admission to get a bill through, especially the House. But as a researcher, I can tell you that it is unrealistic to expect these triggers to be met in the reasonably approximate future, if ever. So that is the unrealistic part of the current debate over immigration reform.

The senate blueprint contained very little specific language as to how future flows of migration are going to be managed. There is vague talk about some kind of guest worker program, but the specifics about how many new visas would be made available under a temporary worker program, and what if any changes in the allocation of green cards, permanent resident visas, that seems to be up in the air.

When they start talking about doing away with the 25,000 visa per country limit - ignoring the fact that the demand for visas is hugely greater from countries like Mexico and the Philippines, and India and China – when they start talking about making the allocation of visas proportional to the demand for the visas, and taking into account the history of migration between certain countries and the United States, then I will know that Congress is getting serious about reforming the entire system.

But if you do not have a provision for the legal admission of more workers in the future, then we will be simply replicating the situation that was created by the 1986 law.

Read more about the lessons of 1986 and how they apply to the current debate here.